Chavers v. Fleet Bank (R.I.) N.A.

• Decision Date: 02 July 2001
• Docket Number: C.A. 00-5237
• Parties: TYLER CHAVERS, ALEXANDRA LOSSINI AND DANIECE OWSLEY BURNS v. FLEET BANK (R.I.) N.A., FLEET: CREDIT CARD SERVICES, L.P., FLEET CREDIT CARD HOLDINGS, INC., FLEETBOSTON FINANCIAL CORPORATION, and DOES 1-10
• Court: Superior Court of Rhode Island

TYLER CHAVERS, ALEXANDRA LOSSINI AND DANIECE OWSLEY BURNS v. FLEET BANK (R.I.) N.A., FLEET: CREDIT CARD SERVICES, L.P., FLEET CREDIT CARD HOLDINGS, INC., FLEETBOSTON FINANCIAL CORPORATION, and DOES 1-10

C.A. No. 00-5237

Superior Court of Rhode Island

July 2, 2001

DECISION

Savage J.

Before the Court is a motion filed by the defendants by which they ask this Court to reconsider its decision of April 20, 2001 denying their motion to dismiss plaintiffs' complaint, or alternatively to vacate that decision and certify a question to the Rhode Island Supreme Court. Plaintiffs have objected to this motion.

Facts/Travel

For the reasons set forth in its written decision dated April 20 2001 ("Decision"), this Court denied the defendants' motion to dismiss this matter in its entirety. That Decision, reflected in an order of this Court entered on June 21, 2001, is incorporated by reference herein. Subsequently, on May 1, 2001, the defendants ("Fleet" or "defendants") filed the subject motion for reconsideration or certification with a supporting memorandum. Thereafter, the Court received a letter dated May 3, 2001, via Federal Express mail, from the First Senior Deputy Comptroller and Chief Counsel for the Office of the Comptroller of the Currency ("OCC") in Washington, D.C. -- a non-party.^[1] Thereafter, the Court received from defendants' counsel a May 7, 2001 letter with attachments, including a copy of a purported Consent Order between the OCC and Direct Merchants Credit Card Bank entitled In the Matter of Direct Merchants Credit Card Bank, N.A., Scottsdale Arizona, OCC No. 2001-24 (May 3 2001) (Consent Order), which the defendants filed in Superior Court.^[2] On May 21, 2001, the Court received a letter from plaintiffs' counsel^[3] to which was attached inter alia, a copy of defendants' Petition for Issuance of Writ of Certiorari which the defendants had filed in the Superior Court on May 10, 2001.^[4]

In response to the deluge of correspondence received, the Court advised the parties on June 1, 2001 to submit any arguments related to the subject motion in proper form, namely memoranda, on or before June 8, 2001, and set the matter down for hearing on June 21, 2001. In response, the defendants submitted on June 5, 2001 a copy of their Petition for Issuance of Writ of Certiorari that they had filed previously in the Supreme Court and the OCC's Motion for Leave to File Memorandum in Support of Petition for Issuance of Writ of Certiorari and the OCC's Memorandum in Support of Defendants' Petition for Issuance of Writ of Certiorari which the OCC filed in the Supreme Court on May 31, 2001. Despite the Court's request for the matter to be fully briefed by June 8, 2001, on June 18, 2001, the defendants filed a reply memorandum. Additionally, on June 20, 2001, the day before the scheduled hearing on defendants' motion for reconsideration, the Court received a letter, again via Federal Express mail, from the First Senior Deputy Comptroller and Chief Counsel for the OCC.^[5]

In the pending motion, th e defendants ask this Court to reconsider its earlier decision and to grant their motion to dismiss the plaintiffs' claims pursuant to the Rhode Island Unfair and Deceptive Trade Practices Act ("RIUTPA"), G.L. 1956 § 6-13.1-1 et seq., and their contract law claims or, in the alternative, to vacate its decision and certify to the Rhode Island Supreme Court, pursuant to G.L. 1956 § 9-24-27 and Rule 72 of the Rhode Island Superior Court Rules of Civil Procedure, the question of the power of the Office of the Comptroller of the Currency under 12 U.S.C. § 1818(b)(1) to regulate allegedly unfair or deceptive advertising, promotional and marketing acts and practices by national banks. Defendants contend that this legal issue is dispositive of the question of whether they are exempt from the RIUTPA and, by extension, their motion to dismiss. After entertaining oral argument as to defendants' motion for reconsideration or certification and plaintiffs' objections thereto on June 21, 2001, this decision follows.

Motion to Reconsider

The Rhode Island Rules of Civil Procedure, like the Federal Rules of Civil Procedure, generally do not recognize or provide for a motion for reconsideration. See generally Hatfield v. Bd. of Cty. Comm'rs for Converse Cty., 52 F.3d 858 (10th Cir. 1995) (citations omitted). Our Supreme Court, in noting its governance by the "liberal rules" of civil procedure, has "look[ed] to substance not labels." Sarni v. Melocarro, 113 R.I. 630, 636, 324 A.2d. 648, 651-52 (1974). Consequently, "[a] motion can be construed as made under Rule 60(b) even if it is styled 'Motion to Reconsider. . . .'" James Wm. Moore et al., Moore's Federal Practice 1997 Rules Pamphlet ¶60.2 [9] (1996). Rule 60(b) does not "constitute a vehicle for the motion judge to reconsider the previous judgments in light of later-discovered legal authority that could have and should have been presented to the court before the original judgment entered." Jackson v. Medical Coaches, 734 A.2d 502, 505 (R.I. 1999) (citations omitted). With respect to vacating final judgments, the mistakes encompassed by R.C.P. 60(b)(1) do not include judicial errors of law. See Jackson, 734 A.2d at 507. Rule 60(b)(1) is also "not available to allow a party merely to reargue an issue previously addressed by the court when the reargument merely advances new arguments or supporting facts which were available for presentation at the time of the original argument." Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir.1996). Thus, Rule 60(b) does not authorize "'a motion merely for reconsideration of a legal issue . . . where the motion is nothing more than a request that the [trial] court change its mind.'" Jackson, 734 A.2d at 508 n.8 (citing United States v. Williams, 674 F.2d 310, 312-13 (4th Cir.1982)).

In Jackson, our Supreme Court recognized that reconsideration of a previous legal error under Rule 60(b) is allowable "only [in] situations in which 'the mistake was clear on the record, and involved a plain misconstruction of the statute on which the action was grounded.'" 734 A.2d at 507 (quoting Alvestad v. Monsanto Co., 671 F.2d 908, 912 (5th Cir 1982)). Rule 60(b), however, is applicable in situations involving relief from a final judgment, order or proceeding. Super. R. Civ. P. 60(b). The finality contemplated by the rule "envisions an order that definitely terminates the litigation and leaves nothing more for the court to decide." Murphy v. Bocchio, 114 R.I. 679, 683, 338 A.2d 519, 523 (1975).

The matter before this Court involves reconsideration of an interlocutory order: the denial of defendants' motion to dismiss.^[6] It is well-settled that a trial justice "retains the inherent power to modify any interlocutory judgment or order prior to final judgment." Murphy, 114 R.I. at 682, 338 A.2d at 522; 11 Wright & Miller, Federal Practice & Procedure § 2852 at 233 (1998) ("[T]he power of a court to modify an interlocutory judgment or order at any time prior to final judgment . . . is not limited by the provisions of Rule 60(b)."). Interlocutory judgments or orders "are left subject to the complete power of the court rendering them to afford such relief from them as justice requires." 11 Wright & Miller, Federal Practice & Procedure § 2852 at 233 n.8 (1998) (quoting Advisory Committee Note to the 1948 amendment to Rule 60(b) of the Federal Rules of Civil Procedure).^[7]

In support of its motion for reconsideration, Fleet contends that several events intervening since this Court's earlier decision on the defendants' motion to dismiss, warrant the Court's reconsideration of its decision with respect to plaintiff's RIUTPA claim. Specifically, Fleet enumerates the following:

1. "The May 3, 2001 letter to this Court from the OCC's First Senior Deputy Comptroller and Chief Counsel supporting the instant motion for reconsideration or certification and expressing the OCC's view that it is empowered under 12 U.S.C. to enforce Section 5(a) of the Federal Trade Commission Act (15 U.S.C. § 45(a)) against national banks;

[2.] The brief filed by the OCC on May 31, 2001 in the Supreme Court stating that it was 'vitally interested in further review of [this Court's] decision' because it believed this Court's interpretation of 12 U.S.C. § 1818(b)(1) was erroneous and would 'hinder the OCC's efforts to ensure that national banks treat all their customers fairly and responsibly in accordance with the standards of the FTC Act and sound banking practices.' (OCC Brief at p. 8); and

[3] A new OCC Consent order wherein, pursuant to its authority under 12 U.S.C. § 1818(b), it has once again enforced Section 5(a) of the FTC Act and state consumer fraud laws against a national bank credit card issuer that allegedly engaged in false and deceptive acts and practices. In the Matter of Direct Merchants Credit Card Bank, N.A., Scottsdale Arizona, OCC No. 2001-24 (May 3, 2001) (Exhibit "E" to Fleet's Petition for Certiorari)." Fleet Reply Mem. at 3.

Fleet has not asked that this Court consider the OCC's letter to the Court dated June 20, 2001.

In this Court's view, none of these intervening events justifies the defendants' motion for reconsideration. First, the OCC's letters to this Court are procedurally improper attempts by a non-party to be heard by this Court regarding defendants' motion. Pursuant to the Superior Court Rules of Civil Procedure, the OCC, if it desired to be heard, could have filed a motion to intervene.^[8] Instead, it attempts to present its opinions without appearing or formally stating such opinions in the proper form of a court pleading signed by counsel of record and filed, as required by Rule 11 of the Rhode Island Rules of Civil Procedure. While the OCC has filed a motion in the...